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Prakash v. Homecomings Financial

September 5, 2006


The opinion of the court was delivered by: Joseph F. Bianco, District Judge


Defendant brings the instant motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 37, or in the alternative, for summary judgment. For the reasons set forth below, the Court grants defendant's motion for summary judgment, dismissing the case. Though the Court need not address defendant's motion pursuant to Fed. R. Civ. P. 37 because the case is dismissed on the merits, the Court finds that dismissal or sanctions pursuant to Fed. R. Civ. P.37 are unwarranted.*fn1


Plaintiff initiated this action on or about April 15, 2005, seeking damages arising out of defendant's alleged reporting of erroneous credit information regarding plaintiff. Specifically, plaintiff alleges that he was the victim of an identity theft by which a third party fraudulently obtained a mortgage in his name. That third party defaulted on the mortgage loan which was foreclosed in 2003 by defendant Homecomings Financial. When plaintiff subsequently applied for re-financing at Chase Manhattan Mortgage Company, plaintiff discovered the problem and notified defendant Homecomings. According to plaintiff, he had no prior contractual relationship with Homecomings and plaintiff informed defendant of the problem, but defendant failed to correct the alleged errors. Plaintiff alleges violations of the Fair Credit Reporting Act and other various state law claims.

This case was re-assigned to this Court on February 6, 2006. Oral argument was held on August 11, 2006.

As set forth below, based upon a review of the record in this case, the Court finds that plaintiff fails to demonstrate that there are any issues of fact for trial and, thus, summary judgment for defendant is granted.*fn2



The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir. 2006). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party.").

Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 247-48. Thus, the nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth "concrete particulars" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (internal quotations omitted); Tufariello v. Long Island R.R., 364 F. Supp. 2d 252, 256 (E.D.N.Y. 2005). Accordingly, it is insufficient for a party opposing summary judgment "merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (internal quotations omitted).


Defendant argues that plaintiff lacks standing under the Fair Credit Reporting Act ("FCRA"). According to the complaint, defendant reported incorrect information about plaintiff to certain credit reporting agencies and then failed to correct the alleged errors. Section 1681s of the FCRA governs the responsibilities of furnishers of information to consumer reporting agencies. More specifically, 15 U.S.C. § 1681s-2(a) relates to a furnisher's duty to report information and the ongoing duty to correct inaccurate information. Plaintiff, however, lacks standing to pursue claims under § 1681s-2(a) of the FRCA because the plain, unambiguous language of the statute limits the enforcement of this subsection to government agencies and officials. See Redhead v. Winston & Winston, P.C., No. 01-CV-11475 (DLC), 2002 U.S. Dist. LEXIS 17780, at *12-13 (S.D.N.Y. 2002) ("There is no private cause of action under Section 1681s-2(a), for the FCRA limits the enforcement of this subsection to government agencies and officials.") (collecting cases).

Plaintiff may have a private right of action under § 1681s-2(b), however, if plaintiff can demonstrate that defendant (i.e., the furnisher of the allegedly false information) received notice from a consumer reporting agency of the dispute. Section 1681s-2(b) provides:

After receiving notice pursuant to section 611(a)(2) [15 U.S.C.S. ยง 1681i(a)(2)] of a dispute with regard to the completeness or accuracy of any information provided by a person to ...

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